Jonah Kyalo Alias Baba Roda v Republic

(4) That the Honourable court imposed a sentence of twenty (2) years imprisonment which is manifestly harsh, excessive and mandatory minimum sentence against the recent jurisprudences.” 3. The appeal proceeded by way of written submissions. The appellant who acts in person relied on submissions dated 2nd July 2025. His main contention was that the conviction went against the weight of evidence; that the victim was not a credible witness; that her evidence could not be relied upon even though Section 124 of the Evidence Act provides that the court cannot convict on the evidence of a victim solely; that the prosecution’s omission to call certain witnesses was because their evidence would have been adverse to the prosecution’s case and that the omission was fatal; that the elements of the offence were not proved beyond reasonable doubt and more especially that of identification. In regard to the sentence, the appellant submitted that it was unconstitutional; that in line with the decisions of the Supreme Court in the cases of Republic v Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment), the case of Republic v Julius Kitsao Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) and the case of Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) this is the proper forum to raise the issue of the unconstitutionality of the minimum sentences in the Sexual offences Act. He submitted that the minimum sentence unjustifiably fetters judicial discretion thereby offending the principle of judicial independence guaranteed under Article 60(1) of the Constitution. He cited several cases where the High Court Judges had impugned the sentences. He also contended that the minimum sentences offend the principles of Section 216 and 329 of the Criminal Procedure Code which requires courts to consider the character and circumstances of the offender before passing sentence hence undermines the requirements of Article 159 (1) (a) of the Constitution which stipulates that justice should be done without due regard to procedural technicalities and with full regard to context and fairness. He urged this court to declare Section 8(3) of the Sexual Offences Act unconstitutional, allow his appeal, quash the conviction and set aside the sentence. 4. For the Respondent, it was submitted that the testimony of PW1 was well corroborated by the testimony of PW2 and PW4 who produced medical documents P Exhibit 1, 2 and 3 that confirmed PW1 was defiled on 29th October 2022. Counsel stated that in the case of Richard Munene v Republic [2018] eKLR the Court of Appeal’s position in regard to contradictions or inconsistencies in the evidence of the prosecution witness was follows:- “It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” Counsel contended that the contradictions referred to by the Appellant do not create doubt in the evidence of PW1 since she was clear that it was the Appellant who defiled her and this is the same account she narrated to PW2 her mother and PW4 the medical officer who attended to her at the hospital and the medical evidence produced supported PW1’s account that she had been defiled; that both Sections 124 and 143 of the Evidence Act states that it is within the discretion of the prosecution to elect the number of witnesses they will call to prove their case; that in the instant case the prosecution called 4 witnesses who gave sufficient evidence to prove the elements of the offence. Further that, through the evidence of PW1 the prosecution was able to prove the age of the victim and the same was corroborated by PW2 and PW4; PW1’s evidence also proved penetration by the Appellant since she identified him as her assailant and in light of the provisions of Section 124 of the Evidence Act, her evidence on this issue was sufficient to secure a conviction. Counsel argued that the element of penetration was further corroborated by the medical evidence produced by https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5795/eng@2026-04-30 2

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PW4. Also the evidence of PW3 revealed why additional witnesses were not called as they had declined to record their statements. On the element of identification, Counsel submitted that the victim when giving her evidence stated that she met the appellant whom she referred to as ‘Baba Rhoda’; at about 5 p.m that he was holding a catapult and he stopped her and threatened to kill her then he took her to a nearby thicket where he defiled her. The victim also identified the Appellant in court as her perpetrator. Counsel submitted that the Appellant was positively identified by the victim therefore the prosecution had dispensed its burden by proving the appellant defiled the complainant. On whether the sentence passed was within the law, Counsel cited the case of Republic v Joshua Gichuki Mwangi & 4 others (SC Pet. E018 of 2023) (supra) where the court pronounced itself on the issue of minimum sentences in the Sexual offences Act and held that the same are not unconstitutional. Counsel submitted that the sentence of 20 years is consistent with the provisions of Section 8(3) of the SOA that provides for a minimum sentence of 20 years given the recent jurisprudence in the Supreme Court. Counsel for the Prosecution urged this court to dismiss this appeal and uphold the conviction and sentence passed by the trial court. Analysis and determination 5. As the first appellate court, I have a duty to reconsider and evaluate the evidence adduced in the court below while at the same time acknowledging that I did not see or hear the witnesses myself. I have done this and also considered the rival submissions, the cases cited in support of those submissions and the law. 6. The elements of the offence of defilement are the age of the victim, penetration and identification of the accused person as the perpetrator of the offence. The age of the victim was proved through an age assessment report which indicated that the complainant was 13 years old at the time. That she was a child is therefore not in doubt. Her exact age becomes relevant when considering what bracket she fell in for purposes of the sentence. 7. The second element is penetration. In regard to this ingredient, the complainant testified that she was accosted as she came from the river to fetch water. The person who accosted her had a catapult. He ordered her to stop and threatened to kill her if she did not. The person took her into a bush where he removed her underwear and inserted his penis in her vagina. Medical evidence in the form of a P3 form and a PRS (Post Rape Care) form were adduced in evidence and in my view this element was also proved beyond reasonable doubt. The victim’s evidence did not require any corroboration but it found that in the medical evidence. 8. As for the element of identification, the appellant vehemently denied that he was the perpetrator and contended that he was framed because of implicating the victim’s brother in a case of theft of parts of the motor cycle that had been left under his care. He also alleged that he had a land dispute with the victim’s mother and this too could have led to the trumped up charges. The victim was however emphatic that he was the person who defiled her. The appellant conceded that he was their neighbour; that he knew the victim’s mother but not the victim. I have weighed the evidence adduced by both sides carefully and I am satisfied that the appellant was positively identified as the perpetrator of this offence. The complainant knew him well and the offence having occurred at about 5 p.m. the circumstances were favourable to a positive identification. It is my finding that her testimony was very consistent and she remained consistent even upon rigorous cross – examination by the appellant. The fact that she reported the matter almost immediately, culminating in the arrest of the appellant adds more credibility to her evidence. This added to the fact that she remained consistent in her narration of what had been done to her both to her mother and the other witnesses lends credence to her evidence. It is my finding that contrary to the appellant’s submissions, she was a truthful witness. I believed her because her https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5795/eng@2026-04-30 3

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evidence was consistent and steadfast. This is unlike the evidence of the appellant which was mostly uncorroborated and clearly untrue. It is not possible for instance that he could have known the victim’s mother but not the victim yet both lived with him in the same neighbourhood. His allegations that he was framed for implicating the victim’s brother for theft and because of a land dispute were not supported by evidence and were certainly raised in order to save his skin and I am not satisfied that they affected the weight of the prosecution’s case in any way. 9. That he was HIV positive and the victim did not contract it is neither here nor there as it is common knowledge that even married couples can be discordant. 10. Whereas it is true that there were some inconsistencies between the evidence of the victim and her mother, the same were not fatal. See the case of Phillip Nzaka Watu v Republic [2016] eKLR where it was observed that “it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”. The inconsistency here was just as to whether the victim reported the matter to her mother or whether she (mother) learnt it form somebody else. The mother (PW2) explained that the victim was afraid of telling her. It is my finding that the discrepancy did not take anything away from the victim’s evidence. I am therefore satisfied that the case against the appellant was proved beyond reasonable doubt. The conviction is therefore safe and the appeal on that ground must fail. 11. The next issue is in regard to the sentence. The court imposed the minimum sentence prescribed for that offence and as the appellant correctly submitted the Supreme Court has now settled the issue of the legality of the sentence both in the case of Republic v Mwangi (supra) and the case of Republic v Julius Kitsao Manyeso (supra). As to whether this court should declare the minimum sentence unconstitutional, my position is that this is not the proper forum to litigate that issue. The best forum would be in a constitutional petition. The appeal against sentence also fails as the sentence is a lawful sentence as prescribed by law. 12. The upshot is that this appeal is dismissed for lack of merit. The conviction and sentence of the learned magistrate are upheld. 13. Appellant has a right of appeal to the Court of Appeal within 14 days. It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA JUDGE In the presence of: The Appellant in person (at Kamiti Max Prison) No appearance for the State Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5795/eng@2026-04-30 4

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